In 1987 Republican President Ronald Reagan and a Democratic-controlled Congress took on the task of appointing a new justice to the Supreme Court to replace the seat vacated by retiring Lewis F. Powell, Jr. Reagan and others anticipated that a new justice would provide the “swing” vote that would move the court to the political right. The president had already successfully nominated Sandra Day O’Connor and Antonin Scalia to the Court, and now hoped to seat Robert Bork, a federal judge and conservative legal theorist, who Reagan praised for being “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint.” Reagan elaborated, explaining that Bork shared “my view that judges’ personal preferences and values should not be part of their Constitutional interpretations.”

Bork’s detractors in the Senate Judiciary Committee and elsewhere, pointed to his record that included opposing three issues: an early civil rights law that required businesses to serve non-whites, abortion rights, and the court’s involvement in promoting gender equality. Bork’s staunchly conservative record brought protest from groups that had fought for civil rights advances for African-Americans and women. Democratic senators (including Senate Judiciary Chairman Joe Biden) grilled him on his conservative positions during the televised nomination hearings, in an effort to point out where they felt he was out of step with popular opinion. The hearing was so contentious that Bork’s last name became a new verb, listed in the dictionary as obstructing someone through systematic defamation or vilification.

Democrats uniformly voted against Bork’s confirmation, while six Republicans also rejected the nomination. One of these Republicans was John Warner from Virginia who argued of Bork: “I searched the record. I looked at this distinguished jurist, and I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest Court of the land.” Indeed, during the hearings Bork called the Brown v. Board school desegregation decision as equally as controversial as the Roe v. Wade decision on abortion. In doing so, Bork appeared to be out of touch with the general consensus that the landmark desegregation ruling was morally correct. Reagan’s chief of staff next solicited feedback from Senate leaders on the president’s list of 13 potential nominees. Reagan’s second nomination went nowhere, as the nominee withdrew his candidacy after disclosing that he had on more than one occasion used marijuana. Reagan then nominated Anthony Kennedy, a judge with a reputation for being moderately conservative and careful in his deliberations. Kennedy had been one of the potential candidates that Democratic Senate leaders found acceptable, though some Republican Senate leaders viewed Kennedy as not sufficiently conservative. News articles at the time called Kennedy a consensus nominee, and evidence of Reagan yielding to the Democrat’s control of the Senate and his own diminished influence as he entered his final year as president. The Senate confirmed Kennedy’s appointment in February 1988 by a unanimous vote.

Discussion questions:

1) What did Democrats not like about Robert Bork’s nomination?

2) If Bork had been seated, what had Reagan hoped the justice would be able to do on the Court?

3) Why do you think Democrats were more accepting of Kennedy’s nomination, and why do you think Republicans were disappointed?

4) How would you describe the difference between Bork and Kennedy? Why do you think Reagan nominated Kennedy for his third nomination?